All about water rights and adjudications

Archive for June, 2009

Florida legislation which moves from water district governing boards to district executives the ability to make many key water use decisions in the state, was signed into law today by Governor Charlie Crist.

The bill, Senate Bill 2080, was intensely controversial. Newspaper editorial opinion around the state weighed in favor of a veto. (The bill also does a mass of other things; its summary notes, “Provides criteria for the Southwest Florida WMD [Water Management District] to meet in implementing the West-Central Florida Water Restoration Action Plan. Revises the membership of WMD governing boards. Revises application requirements for water well contractor licensure. Require WMDs to provide model Florida-friendly landscaping ordinances to local governments. Authorizes administrative fine to be imposed for each occurrence of unlicensed water well contracting, etc.”

The bill had been sought by a number of members of the state’s development community. It was thought likely to shorten the administrative approval period for applications, among other impacts.

Crist’s statement in favor of signing said that the measure “contains a comprehensive package of provisions related to the water management districts and the conservation of water resources. The bill reencts the water management districts as part of their agency sunset review. The bill also codifies principles of Florida-friendly landscaping . . . However, Senate Bill 2080 also contains provisions that delegate final agency action to the executive director [of the agencies] on surface water and consumptive use permit applications, as well as increase certain timeframes for consumptive use and surface water projects. Accordingly, I am asking the governing boards and executive directors to continue to include surface water and consumptive use permits on all board meeting agendas or other public meetings for discussion and transparency purposes.”

That latter request, however, was not incorporated into the bill, a point quickly raised by the bill’s critics.

Colorado and Utah, two of the dryer states, long have banned collection of rainfall – even on personal property – because even rain is subject to the prior appropriation system. As Kevin Lusk, an engineer for Colorado Springs Utilities said, “All the water was spoken for here in the Arkansas Basin 100 years ago or more. If the water falls as rain, that’s water that was going to get to the stream system, and somebody already has dibs on it, and if somebody intercepts that, it’s the same as stealing.”

But some redefinition is underway.

This year’s Senate Bill 80, signed into law on April 22, changes that state law contruct, though not absolutely. The state legislative summary:

This bill allows for the collection of precipitation from up to 3,000 square feet of a roof of a residence that is not connected to a domestic water system serving more than 3 single-family dwellings. The collected water must be used for:
< ordinary household purposes;
< fire protection;
< watering of animals and livestock; and
< irrigation of not more than 1 acre of gardens and lawns.
A person wanting to capture rooftop precipitation who meets the qualifications in the bill must submit an application and unless the person currently has a well permit, pay a fee to the state engineer. Owners of certain wells are allowed to collect rooftop precipitation under the same use limitations as contained in their well permits. If a person violates an order issued by the state engineer regarding collection of rooftop precipitation, that person is subject to a $500 fine per violation.

The permits and specific requirements are expected to limit the actual use of the new law, and a series of pilot projects have been established.

State Representative Marsha Looper, R-Calhan, who backed the measure after a constituent complained about being unable (or not allowed) to collect water from a house roof, said she thinks the pilot projects will show water flows will be unimpaired, partly because of desert evaporation conditions.

David Dempsey, a writer for the environmental group Conservation Minnesota, contends in a June 28 op-ed for the Minneapolis Tribune that in spite of the new Great Lakes compact, water in bulk could be privatized and sold from the lakes.

“The compact originated from a Canadian firm’s proposal in 1998 to export 50 tankers per year of Lake Superior water to Asia,” he writes. “The Great Lakes states and many citizens worked to prevent the commercialization of the lakes. But they didn’t succeed. While it is now illegal to export 50 tankers per year of Lake Superior water without the permission of the governors of every Great Lakes state, it is perfectly legal to export 50 tankers per year of bottles or other containers holding Lake Superior water with no interstate approval.”

He points out that Texas businessman T. Boone Pickens has made a large-scale market in Texas of water rights, some of which he has sold to local communities.

Dempsey’s prescription:

Correct the oversight in Minnesota’s and other Great Lakes states’ laws that fails to reaffirm water as a public resource that cannot be privately owned, any more than the air can.

Enact a congressional resolution expressing the policy of the U.S. House, Senate and president that the Great Lakes Compact cannot be interpreted or used by any party to claim private water ownership.

The Republican River Water Conservation District Water Activity Enterprise completed the purchase of ground water rights for the Compact Compliance Pipeline on Friday, June 19, using funds provided from the Colorado Water Conservation Board’s construction loan
fund.
The ground water rights will be leased back to the sellers until the water is needed for delivery through the pipeline. Although the Republican River Compact Administration has not approved a plan for augmentation and accounting procedures for the pipeline project
yet, the RRWCD Board of Directors concluded that completing the purchase was prudent in light of the State of Colorado’s current budget situation. The State of Colorado is currently in negotiations with the States of Kansas and Nebraska on terms and conditions for approval of deliveries of water to the North Fork of the Republican River to assist the state of Colorado with compact compliance.

The RRWCD Board expects Colorado to propose a revised resolution to approve terms and conditions for the pipeline project at the annual RRCA meeting in Lincoln, Nebraska, on August 11 and 12. If the Kansas and Nebraska members do not approve the revised resolution, the State of Colorado is expected to seek arbitration under the provisions of the Final Settlement Stipulation between the States.

Water’s value is rising, but it may not yet fetch as much on a quantity basis as does, say, oil. Still, remarked Bill Simpson, mayor of Aberdeen, Washington, “I said, well, if we can get a clean trade of a barrel of water for a barrel of oil, I’m all for it.”

The point arose at all because Aberdeen’s public works director said he’d been contacted by a company interested in buying water at the port city – water currently in surplus since the closure of the nearby Cosmopolis timber mill – and selling it to the Persian Gulf nation of Qatar.

5th District Judge John Melanson on June 19 ordered Department of Water Resources Director David Tuthill – or his successor, since Tuthill was set to leave that job at the end of June – to review and amend some aspects of his orders to address water calls in the Magic Valley.

Specifically, he “Remanded on issue of seasonal variation; Director abused discretion in ordering ‘replacement plan’ and failure to provide timely hearings; affirmed in other respects.”

The decision has significant impact within the Snake River Basin Adjudication but, although SRBA Judge Melanson delivered it, it is not part of the adjudication. The case arose in district court in Gooding County through an administrative appeal of the department’s actions. Delivered earlier to Judge Barry Wood (himself a former SRBA judge), it was assigned in July 2008 to Melanson, who also undertakes general district court work outside his SRBA responsibilities.

The calls came from Clear Springs Foods and Blue Lakes Trout Farm, both fish farmers in the Buhl area and holders of relatively senior water rights in the area. They contended that spring flows feeding their water supplies had diminished in recent years, in large part because of strong water use by groundwater pumpers over the Eastern Snake Plain Aquifer. The two fish farm companies issued a water “call” – a demand that junior water right holders back off their water use so that senior rights were maintained, and a request that the Department of Water Resources enforce the request, as state law provides.

Blue Lakes delivered its call to the department in March 2005, and Clear Springs in May of that year. A series of negotiations (with groundwater users and others) and orders followed.
In July 2008 Tuthill, as director, issued a final order intended to meet that demand, but intended also to ease the impact of water loss on the groundwater users. He ordered either curtailment of water use or a plan for groundwater users to replace the water on a phased-in basis.

The case was appealed to district court in July 2008, and intervention was granted to two others, the Idaho Dairymen’s Association (in October 2008) and Rangen, Inc. (in November 2008).

The western North Carolina town of Boone (named after the famous pioneer), located in the mountains and relatively high in elevation, has turned into the fulcrum of a strong local war over water supplies.

The town has been growing rapidly, and by some projections may double in size (its population now is about 13,000) by 2060. It is, however, looking toward obtaining water supplies for the future, and that has led it to pursue as much as four million gallons of water a day from the nearby New River.

That has in turn sparked a strong revolt elsewhere in the country. The New River Stewardship Committee has circulated a petition against the project, and argues, “The current flow of the South Fork of the New River cannot and will not sustain the proposed withdrawal of up to 4 million gallons of water per day. The water intake facility has serious potential to threaten the sustainable environmental recreation, the natural beauty and heritage tourism upon which the businesses of Todd depend. The quality and quantity of water discharge back into the New River will have an adverse effect on the fragile ecosystem. Of particular concern is the presence of pharmaceutical waste in the discharge. Boone has no plans to treat this waste.”

As a municipality, the town of Boone has a responsibility to provide clean water to its citizens. In 2004, a study revealed that Boone is rapidly approaching maximum capacity from its existing water sources. In 2005, the Town began a water conservation program, asking people to voluntarily conserve water. Some of the details of that effort follow.

When a water system reaches 80 percent of capacity, the N.C. Department of Environment & Natural Resources recommends a plan for expansion. When the system reaches 90 percent capacity, N.C. recommends the expansion be under construction. If not underway, the state could impose a moratorium on new water hookups.

Boone surpassed the 80 percent mark in 2006 and is projected to hit the 90 percent mark in 2009.

The town of Boone has a Tier 1 rating. That means N.C. says Boone has less than a 100 day supply of water.

S. 787, the Clean Water Restoration Act, cleared the Senate Committee on Environment and Public Works on June 17, but opposition to it continued in some quarters. Senator Mike Crapo, a member of the Senate EPW Committee, voted against it there and also placed a “hold” on the bill, signaling his readiness to filibuster the bill if necessary.

“This bill threatens the current Clean Water Act statute and would allow for government regulation of virtually all interstate and intrastate waters and their tributaries, including rivers, intermittent streams, mudflats, sandflats, prairie potholes, wet meadows, playa lakes, natural ponds and others,” said Crapo. “It also would grant federal regulators new and expanded authority over activities affecting these waters, which has serious implications for commerce. I intend to use every tool and privilege afforded to slow or stop this ill-conceived attack on Idaho’s sovereignty over managing its water.”

S. 787 would eliminate the term “navigable” from the current Clean Water Act and substitute it with “waters of the United States.” Crapo continued, “By so doing, the Act goes beyond restoring the regulatory environment that existed before the Rapanos and SWANCC decisions. In fact, it expands the scope of the Act by changing the standard for triggering federal jurisdiction. I have grave reservations about fundamentally altering the intent and scope of the Clean Water Act, and I look forward to opposing this bill if it ever makes it to the floor of United States Senate.” Crapo was joined by his six Republican colleagues on the Committee in voting against this legislation.

The bill was introduced as a result of the Supreme Court rulings in Solid Waste Agency of Northern Cook County (SWANCC) v. Corps of Engineers in 2001 and Rapanos v. United States in 2006. The Court ruled in those cases that “navigable waters” only applies to large, continuously flowing bodies of water.

One of the problems long bedeviling the water users of the Lower Arkansas River area in Colorado has been the splintered jurisdiction, the many water districts in the area – 26 in Otero County – which aren’t always lined up the same way.

On June 17, with that in mind, the board of the Lower Arkansas Valley Water Conservancy District agreed unanimously to spend as much as $14,000 toward setting up a comprehensive water authority for the area.

Much of the immediate impetus for acting centers around water quality issues and the need to upgrade infrastructure. But water supply and rights issues also easily could come into play as well.

A battle shaping up in Congress through May heated in June, over proposed revisions to the Clean Water Act, changes that critics warned might strip from states much of their current control over water rights.

The measure, Senate 787, is described as “A bill to amend the Federal Water Pollution Control Act to clarify the jurisdiction of the United States over waters of the United States.” Lead sponsor is Wisconsin Senator Russ Feingold, and it has 24 co-sponsors – half the chamber and enough with the vice-president’s vote to clear the Senate.

On May 21, Feingold said he had obtained support for the measure from the Obama Administration.

But critics in the Senate, including some western Republicans, warned that the measure as written could amount to a major federal usurpation of water right regulation which until now has been handled by the states. Idaho Senator Mike Crapo said he felt strongly enough about it to place a hold on the measure or take other steps to block it.

Feingold describes the bill in this way: “The Clean Water Restoration Act would ensure protections for rivers, streams and wetlands which were long protected under the Clean Water Act, but are now in jeopardy of losing protections as a result of two recent Supreme Court cases. Since those decisions, more and more waters continue to be stripped of protections previously provided by the CWA, which became law in 1972.”
Critics, however, are concerned that by removing a reference to “navigable” waters, the bill would give to federal control regulatory authority over water that states long have assumed.

Water rights and water wars: They’re not just a western movie any more. As states grow and water supplies don’t the western states continue in their struggles to find enough water to meet the ever growing needs. A favorite Mark Twain quote (it may or may not have actually been his) in the west has been, “Whiskey’s for drinking; water’s for fighting.” Today he could just as easily have been referring to the drought-ridden eastern states where water conflicts are becoming commonplace and eastern water users are looking to the west for ideas on handling an issue that a decade ago they never thought to be addressing. The Water Gates reviews water supplies, uses and rights to use water in all 50 states.242 pages, available from Ridenbaugh Press, $15.95

The Snake River Basin Adjudication is one of the largest water adjudications the United States has ever seen, and it may be the most successful. Here's how it happened, from the pages of the SRBA Digest, for 16 years the independent source on the massive case - advances, slips, false starts and unexpected leaps.